Espinoza v. McDonald
Filing
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ORDER Denying Petitioner's Motion For A Certificate Of Appealability (Doc. 18 ), signed by District Judge Lawrence J. O'Neill on 6/8/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CORNELIO VEDOLLA ESPINOZA,
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Petitioner,
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v.
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MIKE McDONALD, Warden,
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Respondent.
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1:10-cv—01521-LJO-SKO-HC
ORDER DENYING PETITIONER’S MOTION
FOR A CERTIFICATE OF
APPEALABILITY (DOC. 18)
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.
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before the Court is Petitioner’s motion for a certificate of
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appealability filed on May 23, 2011.
Pending
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The docket reflects that on December 7, 2010, the Court
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directed Respondent to file within sixty (60) days a response to
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the petition that had been filed by Petitioner on August 23,
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2010.
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Respondent timely filed an answer to the petition on March 7,
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2011, in which the merits of the petition were addressed.
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14.)
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before any dispositive order had issued from the Court,
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Petitioner filed a notice of appeal.
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not identify any order or judgment from which Petitioner
(Doc. 5.)
After receiving an extension of time,
Petitioner did not file a traverse.
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(Doc.
On May 23, 2011,
The notice of appeal did
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purported to appeal.
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instant motion for certificate of appealability.
On the same date, Petitioner filed the
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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in the District Courts.
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Rule 11(a) of the Rules Governing Section 2254 Cases
The Court of Appeals has jurisdiction of appeals from “all
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final decisions” of the district courts except where direct
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review may be had in the Supreme Court.
28 U.S.C. § 1291.
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Pursuant to 28 U.S.C. § 1291, a judgment is final for purposes of
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appeal when it 1) is a full adjudication of the issues, and 2)
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clearly evidences the judge’s intention that it be the court’s
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final act in the matter.
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1000 (9th Cir. 2006).
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Here, no final decision has been made in Petitioner’s case
because the issues have not been adjudicated.
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Patel v. Del Taco, Inc., 446 F.3d 996,
Therefore, there is no final order before the Court that is
adverse to the applicant within the meaning of habeas Rule 11(a).
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Accordingly, because it would be premature to issue a
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certificate of appealability, it is ORDERED that Petitioner’s
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motion for a certificate of appeal is DENIED.
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IT IS SO ORDERED.
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Dated:
b9ed48
June 8, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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